"The common law, which makes the contract of a married woman invalid, must still be accepted as the general rule for those States which have not made exceptions by statutes. The three cases cited above, holding the contract of a married woman valid, are in States where a woman has the general power to contract, and it is implied in two of those decisions that the State of her domicile would have had the power to protect a married woman from the result of her contract made while personally present in such State, if it had chosen to do so.

"It may be admitted that, as stated by Judge Story in his Conflict of Laws, § 103, in regard to incapacity incident to coverture, the law of the place where the contract is made or the act is done now governs.' And that, as stated in Scudder v. Bank. 91 U. S. 406, 'the validity of a contract is to be determined by the law of the place where it is made.' Yet I do not think this principle has yet been carried so far in any decided case as a judgment for the plaintiff in this case would require.

"The capacity of citizens of a State, so long as they actually remain within the borders of the State, would seem to be a matter of local law, to be controlled by the laws of the State, and not to be evaded by the simple device of sending or mailing a letter to some other State. Suppose that the laws of some State should provide that infants might attain their majority and become capable of contracting at the age of 18 years, could it be held that a minor 18 years old in Connecticut could, by mailing a contract to that State, subject his property in Connecticut to execution, against the will of his guardian, and against the determination of the legislature and courts of Connecticut? It may be said, generally, that wherever the decisions of the State courts related to some law of a local character which may have become established by those courts, or has always been a part of the law of the State, that the decisions upon the subject are usually conclusive, and always entitled to the highest respect of the federal courts. Where such local law or custom has been established by repeated decisions of the highest courts of the State, it becomes also the law governing courts of the United States sitting in that State.' Bucher v. Railroad Co., 125 U. S. 555, 8 Sup. Ct. Rep. 974; Burgess v. Seligmann, 107 U. S. 20, 2 Sup. Ct. Rep. 10.

"In the present case, the law by which the invalidity of a contract is established is the common law, and the decisions that a married woman has capacity to make such contracts are founded upon local statutes. In these circumstances I think it is the duty of this court to follow the decision of the Connecticut court of last resort."

DRAFT-ACCEPTANCE-RESCISSION.-It is held by the Court of Civil Appeals of Texas, in Grumbach v. Hirsch, that one who accepts, in writing, a draft drawn on him, becomes the principal debtor, and cannot afterwards withdraw his ac

ceptance, on the ground that he accepted the draft by mistake, thinking that the drawer had funds in his hands. The court says: "When appellee accepted the draft, he became the principal debtor for the amount specified, and his acceptance was an admission that he had funds of the drawer in his hands; and he cannot deny that he had such funds when suit is brought by the holder of the draft. Daniel, Neg. Inst. § 534. and authorities cited; Clews v. Bank, 89 N. Y. 423. It is stated by the same author (section 493) that if the acceptor, immediately after his redelivery of the draft, discovers that he was not in funds, as he had supposed, so that his acceptance was made under a mistake, he may recall and revoke it, provided there be yet time for the holder to notify the drawer and indorsers, and save himself from loss. In support of the statement, the case of Bank v. Wetherald, 36 N. Y. 335, is cited. It is claimed by appellee that the decision is also indorsed by Tiedeman, Randolph. and Norton. The last two text-books have not been examined by this court, but Tiedeman does not indorse the doctrine of the New York case, but merely states that it has been so held in that case. He does, however, indorse the doctrine that, 'when the bill is once accepted and delivered to the holder, it is irrevocable, even with the consent of the holder, since the drawer and indorsers have a vested interest in the acceptance.' We have seen no other case holding to the doctrine announced in the New York case, and, on the other hand, there are several decisions holding the contrary doctrine. In the case of Trent Tile Co. v. Ft. Dearborn Nat. Bank, 23 Atl. Rep. 423, the Supreme Court of New Jersey held: An acceptance delivered to the agent of the holder duly authorized to receive it is, in legal effect, and for all purposes, delivery to the holder. When the bill bearing the signature of the acceptor by his act or direction comes into the hands of such agent, the contract becomes eo instante a completed one between the acceptor and the principal owner of the bill. A bill of exchange forwarded to or delivered into the hands of a bank or banking house for the purpose of presentation to the person upon whom the bill is drawn for his acceptance in the usual course of business is a transaction that creates the relation of principal and agent between such holder and the bank, with authority in such agent to receive in the holder's behalf delivery of the acceptance when signed. The Mechanics` National Bank of Trenton was therefore the agent of the plaintiff to procure in the plaintiff's name acceptance of the bill in question. The bill was presented to the defendant in due course, and regularly accepted by its authorized officer, and delivered to such agent of the plaintiff. There would, thus appear a finished transaction of legally binding force, vesting rights in the plaintiff, which could not thereafter be devested without its consent. The defendant, however, claim that it had the right to, and did, revoke its acceptance. For

*

such a right neither dictum nor authority has been found in any reported case determined upon principles of the common law.' In the case of Hoffman v. Bank, 12 Wall. 181, it is said: 'Money paid under a mistake of facts, it is said, may be recovered back as having been paid without consideration; but the decisive answer to that suggestion, as applied to the case before the court, is that money paid, as in this case, by the acceptor of a bill of exchange to the payee of the same or to a subsequent indorsee, in discharge of his legal obligation as such, is not a payment by mistake nor without consideration, unless it be shown that the instrument was fraudulent in its inception, or that the consideration was illegal, or that the facts and circumstances which impeach the transaction, as between the acceptor and the drawer, were known to the payee or subsequent indorsee at the time he became the holder of the instrument.' We think the true doctrine, as applicable to this case, is stated in the foregoing extracts. When appellee signed the acceptance he became the principal debtor, and he would have no more right to rescind this contract on the ground of mistake as to having funds of the drawer on hand than he would to rescind a contract because he had no funds of his own to pay what he had promised."

MOVABLE AND IMMOVABLE FIXT

URES.

The term "fixtures" is one not always easy to define. It generally has reference to personal property or chattels which are used in connection with real estate, or as part of an improvement of some kind thereon, and necessary to the full enjoyment of the realty and the purpose in view. Bouvier defines the term thus: "Personal chattels affixed to real estate, which may be severed and removed by the party who has affixed them, or by his personal representative, against the will of the owner of the freehold." But the term embraces more than this, for the articles may be annexed by the owner of the fee and certainly chattels thus annexed would become in the fullest and most comprehensive sense As a rule, all the difficult ques"fixtures." tions arising upon an issue of the nature, character or extent of fixtures arise where the two species of property are owned or claimed by different parties, or some conflicting right is asserted. For convenience, as well, perhaps, as from necessity, the courts have adopted certain rules for general guidance by

1 Bouvier's Law Dict. "Fixtures."

which the difficulties of this nature may usually be avoided. These general rules are: 1st. There must be either a real or constructive annexation or fixing of the chattel to the freehold. 2d. Appropriation or adaptation to the use or purpose of that part of the realty with which it is connected, is necessary. 3d. The party making the annexation must intend to make the chattel a permanent and lasting accession to the freehold; this intention being inferred from the nature of the article affixed, the relation and situation of the party making the annexation, and the policy of the law in relation thereto, the structure and mode of annexation, and the purpose or use for which the annexation has been made. "One of the tests," say the Supreme Court of Kansas, "of whether personal property retains its character or be comes a fixture, is the use to which it is put. If it is placed on the realty to improve it and make it more valuable, it is some evidence that it is a fixture; but if it is placed there for a use that does not enhance the value of the realty, this is some evidence that it is personal property." But it is not absolutely necessary in all cases that a chattel be attached or fastened to the building, as this is only one mode of affixing them to the freehold; it is sufficient that they be fixed and stationed in, or in some substantial way fastened or attached to, the freehold or some part of it. Nor will the fact that the chattel may be removed without any material injury to the realty necessarily change the rule. Such fact is merely a circumstance, not conclusive, necessarily, indicating the character of the fixture with reference to its movable qualities. The rule of the common law is, whatever the owner affixes to the realty becomes part and parcel thereof, and passes with a conveyance of the fee. And when a third person places permanent fixtures upon the land of another, such property so affixed be

2 Chase v. Tacoma Box Co., 11 Wash. 377; Henkle v. Dillon, 15 Or. 610; Choate v. Kimball, 56 Ark. 55, 60; Beemis v. First Nat. Bank (Ark.), 40 S. W. Rep. 127; Demby v. Parse, 53 Ark. 526, 529. See, also, Cannon v. Hare, 1 Tenn. Ch. 22.

3 Railroad Co. v. Morgan, 42 Kan. 23; Winslow v. Bromich, 50 Kan. 300. See, too, Brown v. Reno Electric Light & Power Co., 55 Fed. Rep. 229, 232.

Feeder v. Van Winkle (N. J. Eq.), 33 Atl. Rep. 399. 3 Feeder v. Van Winkle (N. J. Eq.), 33 Atl. Rep. 399. 6 Carpenter v. Walker, 140 Mass. 416; Brown v. Reno Electric Light & Power Co., 55 Fed. Rep. 229,

232.

cones at once part of the realty and cannot be removed without the consent of the owner of the freehold.' Nor, of course, would the owner of the land be liable to such third person for the conversion of the chattel because of the refusal to permit its removal.8

Movable Fixtures.-A sugar wagon used in a sugar mill to hold the syrup and convey it from place to place about the mill, is not a fixture. Tubs, casks, and like vessels, used in brewing, though placed in excavations made for them, are held to be trade fixtures and movable. 10 Where land is leased for mining purposes, engines and machinery. placed on the land, as well as houses for miners to live in temporarily, and any other structures necessary to the carrying on of the business for which the land is leased, and intended for no other purpose, are trade or business fixtures, and may be removed by the lessee at or before the expiration of the lease."1 A tenant by the curtesy may erect all necessary buildings and place machinery therein for grinding corn and ginning cotton, and upon his death and the termination thereby of his estate in the land, the improvements thus placed on the realty for this purpose will belong to the executors of the life tenant as trade fixtures, and may be removed. 12 Saw mill machinery and appliances which can be removed conveniently without injury to the soil, do not become fixtures where it is customary to remove from place to place such machinery and appliances.13 A derrick used in quarrying stone, though affixed to the realty by being fastened to a post in the

Morrison v. Berry, 42 Mich. 389.

8 Morrison v. Berry, 42 Mich. 389.
9 Winslow v. Bromich, 54 Kan. 300.
10 Wolford v. Baxter, 33 Minn. 12.

Conrad v. Saginaw Mining Co., 54 Mich. 249; Brown v. Reno Electric Light & Power Co., 55 Fed. Rep. 229. To like effect, vide, State Savings Bank v. Kercheval, 65 Mo. 682; Comstock v. Fletcher (Mich.), 3 N. W. Rep. 162; Honeyman v. Thomas, 25 Oreg. 539. It is held in New Jersey, however, that the engine and boiler, beer kettles, flat-coolers, washtubs, pumps, windmill, plungers and elevators, as well as all gearing and shafting, are properly real estate when used in connection with the brewing business and affixed to the realty for such purpose. Schmitz v. Scheifele (N. J. Ch.), 1 Atl. Rep. 698. 12 Overman v. Sasser, 107 N. C. 432.

13 Washington Nat. Bank v. Smith, 15 Wash. 160; Choate v. Kimball, 56 Ark. 55. Otherwise, however, where the mill site has for a long time been used as such; where the custom of the country is to regard all machinery attached to the realty as part thereof, and where it is so treated by the owner himself. Beemis v. First Nat. Bank (Ark.), 40 S. W. Rep. 127.

17

ground and supported by guy ropes attached to the rock, but which can be easily removed and used without injury either to the derrick or the land, in other places, is not a fixture.14 Electric light fixtures, such as necessary buildings, engines, dynamos and like appurtenances necessary to the proper operating of such business, are movable fixtures where they are placed on the land by a lessee who leases the property for this purpose, and may be removed by the lessee at the termination of the lease.15 A temporary dwelling built upon land leased for the purpose of operating a dairy occupied by the lessee and family and his servants in the business, are movable fixtures, and do not attach by operation of law to the freehold.16 A tenant who leases an hotel has the right to remove a wooden partition put up to screen the dining room from the office. Any houses temporarily built as necessary for the purposes of the lease, and which may be removed without material injury to the realty, may be removed by the tenant at any time during the life of the lease.18 A cotton gin placed on the leased premises with the consent of the landlord, and with the intention on the part of the lessor of removing same at the termination of the lease, does not become a fixture. 19 A mirror placed in the wall of a building, but not until after it is finished, is a movable fixture where it can be detached without any injury to the building. 20 Where a person builds an elevator on land belonging to another, but by license of the owner, the agreement being that the building is to be the property of the builder, it will be a movable fixture as between the parties, or, doubtless, others with notice.21 Likewise, where a permanent building is erected on the right of way

14 Honeyman v. Thomas, 25 Oreg. 539.

15 Vail v. Weaver, 132 Pa. St. 363; Brown v. Reno Electric Light & Power Co., 55 Fed. Rep. 229, 233. In such cases, too, there is no presumption that the lessee intended such necessary fixtures to take on a permanent character. Brown v. Reno Electric Light & Power Co., 55 Fed. Rep. 229, 233.

16 Van Ness v. Pacard, 2 Pet. 137.

17 Podlech v. Phelan (Utah), 44 Pac. Rep. 838. 18 Nigro v. Hatch (Ariz.), 11 Pac. Rep. 177; Kile v. Glebner, 114 Pa. St. 381.

19 McMath v. Levy (Miss.), 21 South. Rep. 9. 20 Loan v. Gregg, 55 Mo. App. 581. It is otherwise, however, where a mirror is firmly attached to the building with permanent intent and in such a manner that it could not be detached without some injury to the building. Spinney v. Barbe, 43 Ill. App. 585.

21 Gregg v. Union Pac. Ry. Co., 48 Mo. App. 494.

of a railroad company under license from the company, such building being used for elevator purposes, as between the company and the other party it will be a moveable fixture. 22 But this is not the case as to the owner of the fee. In such instance, the license from the railroad company, owning, not the fee in the land, but only a right of way which may be abandoned at any time, would not stamp the erection as personal property or a movable fixture as between the owner of the fee, whose consent has not been obtained, and the lessee of the railroad company.23 Counters and shelving, as well as similar furniture and fixtures necessary to the mercantile business, may be removed by the owner thereof as trade fixtures, though they may have remained in, and attached to, the building many years.24 So are a bar, counters and saloon fixtures of like nature, movable, though some of them be nailed to the building. Nor do fixtures erected by a tenant for the convenience of the business the land was leased for, lose their character as personalty where he surrenders the premises, and, at the request of the landlord, leaves the improvements on the land for a time. And where the landlord converts such fixtures after such agreement, he will be liable to the tenant for the value of same.26 Fence rails are movable fixtures where they have been removed and piled up on the land by the owner, and in this condition will not pass with a conveyance of the land made after such detaching from the soil.27 In short, the general rule, according to the modern authorities is, any furniture, appliances, machinery, utensils or structures, not particulary adapted to any particular locality, that can be placed in and removed from the building or other part of the freehold con22 Walton v. Wray, 54 Iowa, 531. In this case, the elevator was operated by shafting extending from other land owned by the lessee.

23 Furrh v. Winston, 66 Tex. 521. 24 Johnson v. Moser, 82 Iowa, 29.

25 Berger v. Hoerner, 36 Ill. App. 360. Vide, also, Lake Superior Ship Canal Railway & Iron Co. v. McCann, 86 Mich. 106.

26 Thorn v. Sutherland, 123 N. Y. 236. Nor will the assignment of the lease give the assignee any right to control the improvements placed upon the land by the tenant or direct any disposition of them. Such assignee stands just where the assignor stood, and can exercise no rights nor authority except such, alone, as the landlord could have done had there been no assignment of the lease. Id.

27 Harris v. Scovel, 85 Mich. 32.

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veniently and without injury to the same, and which is intended only for temporary purposes, or the purposes of some particular business for a definite time, as where land is leased for some special business for a fixed period, is regarded in law as movable fixt ures or personal property and is to be treated accordingly.28 In order that a tenant may have the advantage of any movable fixtures he may have placed upon the leased premises, it is necessary that he exercise his right of removal during the life of the lease or, at least, at its expiration.29 It has been held that a tenant has a reasonable time after the expiration of his lease within which to remove any temporary fixtures necessary to the purposes of his tenancy." But the correctness of this ruling is at least doubtful, and the better reason seems to be with the contention, supra, that they should be removed not later than the time of expiration of the lease. In the first place, a reasonable time is an indefinite time. It is a period as to the length of which different intelligent minds might draw different conclusions. As soon as the tenancy expires, the landlord has a right to repossess himself of his premises and again at once renew his unhampered enjoyment of same. The improvements made by the tenant may absolutely prevent the enjoyment by the landlord of his realty for the purpose he wishes, or may prevent him again leasing 10 another tenant. In either event, he will be deprived to some extent of the right of enjoyment of his property until the tenant sees fit, within a reasonable time, whatever that may be, to remove his improvements and thereby make it possible for, the landlord to resume his unobstructed use of the land.

28 Hill v. Wentworth, 28 Vt. 429; Rogers v. Brokaw, 25 N. J. Eq. 497; Teaff v. Hewitt, 1 Ohio St. 512; Case Manufacturing Co. v. Garver, 45 Ohio St. 289; Carpenter v. Walker, 140 Mass. 416; Cooper v. Johnson, 143 Mass. 108; Ferris v. Quimby, 41 Mich. 202; Ma. guire v. Park, 140 Mass. 21; Causey v. Empire Plaid Mills (N. Car.), 25 S. E. Rep. 868; Vail v. Weaver, 132 Pa. St. 363; Cherry v. Arthur, 5 Wash. 787.

29 Josslyn v. McCabe, 46 Wis. 591; Second National Bank v. Merrill, 69 Wis. 501; Smith v. Park, 31 Minn. 70; Conrad v. Saginaw Mining Co., 54 Mich. 249; MeMath v. Levi (Miss.), 21 South. Rep. 9; Sawyer v. Long, 86 Me. 541; Friedlander v. Rider, 30 Neb. 783. 30 Harkey v. Cain, 69 Tex. 146; Smith v. Park, 31

Minn. 70.